‘Fair use’ doctrine may be cited in defense of using a copyright-protected work without permission. Whether unauthorized use is fair use or copyright infringement is determined by the courts on a case by case basis. Copyright law and the courts aim to strike a balance between public interest and the rights of authors/artists.
‘Fair use’ doctrine permits limited copying or reproduction of copyrighted works for educational and research purposes. Section 107 of the Copyright Act provides that reproduction “for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not an infringement of copyright.
To determine whether the a work is ‘fair use’ the four main factors to be considered include:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. This is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work with a different purpose then the original (referred to as a ‘transformative use’ by the courts) instead of just copied and/or placed into another work.
- The nature of the copyrighted work. The courts look at whether the work is factual or artistic. In addition, a court is more likely to find fair use when the copyrighted work has been published, rather than unpublished.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Courts look at how much of the work is taken. If a small part of the entire work has been used, the unauthorized use will more likely be considered fair use. This can apply to photos that are used in the background of other content, like a video. Some courts have permitted the work as a whole in thumbnail form.
- The effect of the use upon the potential market for or value of the copyrighted work. This is given the most weight by the courts. If the work replaces and competes with the value of the original work, fair use is not favored. This can apply to derivative uses – like selling paintings or sculptures based on a photograph. However, fair use can still be found even if the work was used without a license.
Visual Connections accepts no liability for any inaccuracies in fact or interpretation in the information provided here, which does not constitute legal advice.